Interpretive Violence and the 'Nationalization' of Hong Kong Law: Notes on the Oath-taking Controversy

Abstract

Recently, six elected pro-democracy legislators in Hong Kong were stripped of their office for not having sworn their oath of office ‘properly’. In this paper I examine the incident through a law and humanities perspective, being concerned not only with the legality of the disqualification, but also with the people who experience the violence of the law – including the lawmakers who have been ousted and the wider Hong Kong society as a whole. Robert Cover has famously said that legal interpretation takes place in a field of pain and death. Through a close reading of the legal texts produced in the oath-taking controversy, I dissect the interpretive moves made by Hong Kong courts as well as by the legislative body of the central Chinese government, which issued an interpretation of the Hong Kong Basic Law (Article 104). I tease out the layers of violence that were exercised in these moves, with respect to the current political situation in Hong Kong. I argue that the most violent aspect of these interpretative moves is that they were made within legal bounds, and are legitimated by the constitutional structure of Hong Kong. The pain that is felt comes from just one cut of a larger operation of ‘nationalizing’ the common law legal system in Hong Kong, not through legal reforms but through legal interpretation. The study sheds light on discourse-based strategies that China uses in managing and controlling its regional governments that enjoy some devolved powers.